Hogan from Omaha to California, and to the expense of travel of his wife between the two places. In support of these charges the plaintiff produced a letter from the defendant to Hogan referring thereto, wherein the defendant wrote: "We will pay the costs of its return and Mrs. Hogan's fare back." We think this promise was fairly susceptible of a construction which would include both of the items of expense to which the defendant objected, and the court's finding in that behalf will not therefore be disturbed.

The final objection of the appellant goes to the alleged error of the court in refusing to tax the plaintiff's cost bill by striking from it certain items of costs embracing the sheriff's fees for serving writs of attachment in the case, and also the notary fees in the manner of the affidavit and bond for such attachment. There is no merit in this contention. This being a proper case for attachment, the fees to which objection is made constituted necessary and proper disbursements in the action, and were therefore proper items of cost to be awarded the plaintiff therein.

Judgment and order affirmed.

[Civ. No. 1809. First Appellate District.-December 30, 1916.] CHARLES PAFF et al., Copartners, etc., Respondents, v. ADOLPH OTTINGER et al., Appellants.

ARCHITECTS' SERVICES-AUTHORITY OF PERSON CONTRACTING FOR OwnERS SUFFICIENCY OF EVIDENCE.-In an action to recover a sum of money alleged to be due as architects' fees for the drawing of plans and specifications for a building to be erected upon the premises of the defendants, and for taking bids upon the same, the agency of the person who acted for the defendants in contracting for such services is sufficiently proven by evidence that such person was the agent of the defendants to get tenants for the building to be constructed on the premises, and that one of the defendants recognized the plaintiffs as his architects, and assured them that the erection of the building would be proceeded with in a short time.

ID. LACK OF LEGAL CAPACITY TO SUE-REFUSAL TO PERMIT FILING OF AMENDED ANSWER-DISCRETION NOT ABUSED.-The refusal to allow the defendants to file an amended answer, wherein they allege for

the first time a lack of legal capacity in the plaintiffs to sue arising out of their alleged failure to comply with the provisions of sections 2466 and 2467 of the Civil Code, relating to the filing of certificates of partnerships, under fictitious names, is not an abuse of discretion, where such application was made upon the trial of the action, more than three years after the filing of the original

answer.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Franklin A. Griffin, Judge.

The facts are stated in the opinion of the court.

Leon Samuels, for Appellants.

George C. Sargent, for Respondents.

THE COURT.-This is an appeal from the judgment in the plaintiff's favor and from an order denying the defendants' motion for a new trial.

The action was brought to recover the sum of $1,154.80, alleged to be due as architects' fees for the drawing of plans and specifications for a building to be erected upon premises of the defendants, and for taking bids upon the same.

It was the contention of the defendants at the trial of the cause that whatever work the plaintiffs may have done in the premises was authorized and ordered, not by the defendants, but by one H. B. Peterson, whom the plaintiffs claim. to have been an authorized agent of the defendants, but concerning whom defendants contend such relation of agency was not sufficiently proven.

The facts of the case upon which the plaintiffs relied for their recovery are substantially these: In the year 1907 the defendants were the holders under a long lease of a certain vacant lot in the city and county of San Francisco, upon which there was at the time a sign to the effect that they would build to suit a tenant, which sign bore the name "B. B. Peterson, Real Estate," and which, one of the defendants testified, had been placed there under the defendants' direction, and that said Peterson was their agent to get tenants for the building to be constructed upon the premises. In the month of September, 1907, said Peterson came to the office of the plaintiffs and requested them to draw plans and specifi

cations and superintend the construction of a class "C" building upon the defendants' said lot. Prior to said time. said Peterson had ordered certain other plans of the plaintiffs for the defendants, and for which the latter had paid. Upon receiving this second order one of the plaintiffs, Mr. Paff, went to look at the lot and saw there the aforesaid sign. The plans and specifications were accordingly drawn, and when completed were delivered to Peterson, and were by him submitted to the defendants, who, according to Peterson's report to the plaintiffs, pronounced them satisfactory, whereupon the plans by the plaintiffs were submitted to contractors, and bids called for. These bids proved too high, and the plaintiffs were instructed by Peterson to revise their plans so as to provide for a frame building. This was done, and the revised plans again submitted to the defendants and to bidders. While these bids were being taken a contractor, whose name also was Peterson, presented to Mr. Paff a card of the defendant Ottinger, upon which was written a note signed by the latter and asking Paff to let this Mr. Peterson figure on the property. Later, Paff called upon Ottinger at the latter's office and found there a set of blue-prints of the building first designed and also of the frame building. Upon introducing himself Paff was greeted by Mr. Ottinger with the words, "Oh, yes; you are Mr. Paff, my architect." A conversation then ensued, in which Mr. Paff was assured that the erection of the building would be proceeded with "as soon as the neighborhood had cleared a little of the Greeks." Paff called again in September and reminded Ottinger that some time had elapsed since the plans were drawn, and asked for a payment on account of his fees, to which Ottinger replied that they were about to sublet, and that he would arrange that the plaintiffs should remain as architects and that the subtenants would pay for their services. The defendants finally refusing to pay the bill this action was brought.

The trial court found in plaintiff's favor from the foregoing facts and rendered its judgment accordingly.

The main contention of the appellants is that the case of the plaintiffs must rest upon proof of an actual agency in the said H. B. Peterson to make the contract for plaintiffs' services, and that neither the existence nor scope of such agency has been proven otherwise than by the self-serving declara

tions of Peterson himself made at various times to the plaintiffs during the progress of their work, and testified to only by them; and that such an agency cannot be so proven. With the law quoted by the appellants in support of this contention the respondents have no quarrel, but they contend-and we think correctly-that the agency of Peterson has been established by sufficient evidence entirely outside of the statements by Peterson himself, and this having in our view of the testimony been so established, the statements of Peterson, as such agent, to the plaintiffs, in the course of their employment and services, would be admissible in evidence, and hence the objections which the defendants urged thereto would have been properly overruled.

The final contention of the appellants is that the trial court erred in its refusal to allow them to file an amended answer, wherein they allege, for the first time, a lack of legal capacity in the plaintiffs to sue arising out of their alleged failure to comply with the provisions of sections 2466 and 2467 of the Civil Code, relating to the filing of certificates of partnerships under fictitious names. These have always been held to be dilatory pleas, which are waived by the failure in the first instance to plead them; and we cannot say that the court abused its discretion in refusing leave to the defendants to amend their answer by making such a plea more than three years after their original answer had been filed, and while the trial of the cause was in progress.

Judgment and order affirmed.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 26, 1917.

[Civ. No. 1798. First Appellate District.-December 30, 1916.] L. B. SOWELL, Respondent, v. LONDON ASSURANCE CORPORATION, Appellant.

on a

INSURANCE-RECOVERY ON ASSIGNED POLICY-OWNERSHIP OF PROPERTY EFFECT OF STIPULATION.-In an action to recover fire insurance policy by the purchaser of the property and the assignee of the policy, where it was stipulated on the trial that there was no dispute as to the ownership of the property, except that after the policy was issued, and prior to its assignment, the insured made a contract to sell the property to a person other than the plaintiff, and that such change in the title, if it was a change in the title, constituted the essence or gist of the defense, the ownership of the property ceased to be an issue in the case, and evidence is properly excluded tending to show that a son of the insured having the same name signed the deed to the plaintiff instead of the insured himself.

ID. APPROVAL OF TRANSFER OF POLICY-OMISSION OF AGENT TO NOTE OUTSTANDING CONTRACT OF SALE-KNOWLEDGE OF FACT-WAIVER OF SOLE AND UNCONDITIONAL OWNERSHIP CLAUSE.-Such a policy is not rendered void under the sole and unconditional ownership clause by reason of the omission of the agent who issued the policy and who indorsed upon the same the approval of the transfer of the policy to the plaintiff to note thereon the outstanding contract of sale, where the facts concerning such contract were fully known to such agent at the time of the conveyance and assignment to the plaintiff, as the approval of the transfer, under such circumstances, amounted to a waiver of the clause respecting the title to the property, which otherwise would have rendered the assignment void.

APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. George E. Church, Judge.

The facts are stated in the opinion of the court.

H. A. Thornton, for Appellant.

Gallaher & Aten, for Respondent.

THE COURT.-This is an appeal from a judgment and order denying a new trial in an action to recover upon an insurance policy, in which action the plaintiff prevailed.